Clarence Carr v. U.S. Bank, NA , 539 F. App'x 926 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14535
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00688-JOF
CLARENCE CARR,
Plaintiff-Appellant,
versus
U.S. BANK, NA,
as Trustee for TBW Mortgage Backed-Trust
Series 2006-5 Mortgage Pass Through
Certificates 2006-6,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 5, 2013)
Before HULL, JORDAN and FAY, Circuit Judges.
PER CURIAM:
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Clarence Carr appeals the district court’s grant of summary judgment in
favor of U.S. Bank, NA (“U.S. Bank”) on his wrongful foreclosure claim arising
under Georgia law in his action that was removed from state court on diversity
jurisdiction, 28 U.S.C. §§ 1332, 1441. We affirm.
I.
In his complaint, Carr claimed that U.S. Bank wrongfully had foreclosed on
his real property. He alleged that, although he had signed the underlying security
deed, the notice of the initiation of proceedings to exercise the power of sale in the
security deed was not sent by the secured creditor, in violation of Georgia law. 1
U.S. Bank filed a summary judgment motion and argued Carr had received
proper notice of the initiation of foreclosure proceedings under Georgia law by a
letter dated January 7, 2010 (“January 2010 letter”), that Moss Codilis, L.L.P.
(“Moss Codilis”) sent on behalf of the servicer and secured creditor. The January
2010 letter stated that Moss Codilis had been authorized by the servicer of Carr’s
loan and the creditor to contact Carr and that the servicer was providing formal
notice, as authorized by the creditor of the loan, that Carr was in default under the
conditions of the note and security instrument for his failure to pay the required
1
Carr’s complaint also brought suit against Mortgage Electronic Registration Systems,
Inc. Carr’s case against that entity was dismissed because he failed to properly effect service,
and he has abandoned any challenge to that determination by not raising that challenge on
appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994) (providing that arguments not
raised on appeal are abandoned).
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installments when due. The letter stated that Carr was required to pay the full
amount of the default on the loan by the 35th day from the date of the letter. If
Carr did not comply, then the entire sum due would be accelerated and any
remedies provided in the note and security instrument would be invoked, including
foreclosing on the property.
Carr responded the January 2010 letter did not satisfy the notice
requirements of O.C.G.A. §44-14-162.2, because the notice was not sent by the
secured creditor. He noted that the January 2010 letter was sent on behalf of the
servicer and failed to identify the secured creditor by name.
In a report and recommendation (“R&R”), the magistrate judge determined
that Carr could not show any breach of a legal duty owed to him by U.S. Bank
based on a failure to comply with Georgia’s statutory notice requirements. The
magistrate concluded that § 44-14-162.2 did not require the notice of the initiation
of foreclosure proceedings to identify the secured party, only that the notice
provide the “name, address, and telephone number of the individual or entity who
shall have full authority to negotiate, amend, and modify all terms of the mortgage
with the debtor.” In this case, the notice sufficiently provided the required
information. The magistrate further determined that the notice required under
§ 44-14-162.2 could be sent by a duly authorized agent. Accordingly, because the
notice was sent on behalf of the loan servicer and the creditor by an authorized
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agent of the entity to whom indebtedness was owed, the notice complied with § 44-
14-162.2. The magistrate recommended that U.S. Bank’s motion for summary
judgment be granted with respect to Carr’s wrongful foreclosure claim.
Carr did not file any formal objections to the magistrate’s R&R. The district
court reviewed and adopted the R&R, and it granted U.S. Bank’s motion for
summary judgment.
II.
On appeal, Carr argues the district court erred in granting summary
judgment in favor of U.S. Bank, because the record before the district court did not
contain any evidence showing that Carr received proper notice of the foreclosure
sale of his property, as required by § 44-14-162.2. Carr argues that the January
2010 letter could not serve as the notice required under § 44-14-162.2. He
contends the letter did not identify the secured creditor on whose behalf notice was
being provided, and the letter was sent by a law firm on behalf of the loan servicer
and an unidentified creditor. Carr argues the district court erred in determining
that he could not demonstrate a causal relationship between any defect in the notice
and his claimed injuries. 2
2
Carr also argues for the first time on appeal that: (1) he did not receive a copy of the
advertisement of the foreclosure sale; (2) no notice was sent by registered, certified, or overnight
mail; (3) he did not receive notice of the specific date of the foreclosure sale; and (4) he was not
actually notified of the initiation of the proceedings to exercise the power of sale, as the January
2010 letter only threatened to commence such proceedings. We decline to address these
arguments not raised in the district court. See Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d
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We review de novo a district court’s grant of summary judgment. Burton v.
Tampa Hous. Auth., 271 F.3d 1274, 1276 (11th Cir. 2001). Summary judgment
should be granted where the movant shows there is no genuine dispute as to any
material fact, and the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a).
In order to prevail on a wrongful foreclosure claim in Georgia, the plaintiff
must establish the defendant violated Georgia’s foreclosure statutes. McCarter v.
Bankers Trust Co., 543 S.E.2d 755, 758 (Ga. Ct. App. 2000). “[A] plaintiff
asserting a claim of wrongful foreclosure must establish a legal duty owed to it by
the foreclosing party, a breach of that duty, a causal connection between the breach
of that duty and the injury it sustained, and damages.” Gregorakos v. Wells Fargo
Nat’l Ass’n, 647 S.E.2d 289, 292 (Ga. Ct. App. 2007) (citation, internal quotation
marks, and alteration omitted).
Pursuant to § 44-14-162.2(a), the following notice requirements must be
given to the debtor prior to a foreclosure sale:
[n]otice of the initiation of proceedings to exercise a power of sale in
a mortgage, security deed, or other lien contract shall be given to the
debtor by the secured creditor no later than 30 days before the date of
the proposed foreclosure. Such notice shall be in writing, shall
include the name, address, and telephone number of the individual or
entity who shall have full authority to negotiate, amend, and modify
1239, 1249 (11th Cir. 2012) (providing that we will “generally refuse to consider arguments
raised for the first time on appeal”).
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all terms of the mortgage with the debtor, and shall be sent by
registered or certified mail or statutory overnight delivery, return
receipt requested, to the property address or to such other address as
the debtor may designate by written notice to the secured creditor.
O.C.G.A. § 44-14-162.2(a). Where notice is not proper under § 44-14-162.2, the
sale of the underlying real estate is not valid. See O.C.G.A. § 44-14-162(a).
The Northern District of Georgia recently certified three questions to the
Supreme Court of Georgia regarding the operation of Georgia’s law governing
non-judicial foreclosures. You v. JP Morgan Chase Bank, N.A., 743 S.E.2d 428,
429-30 (Ga. 2013). The second question specifically asked: “Does O.C.G.A.
§ 44-14-162.2(a) require that the secured creditor be identified in the notice
described by that statute?” Id. at 430. The Georgia Supreme Court issued its
decision answering this question after briefing concluded in this appeal.
As to the second question, the Georgia Supreme Court answered in the
negative and referenced the language in O.C.G.A. § 44-14-162.2(a) to determine
whom the notice must name. Id. at 433. It stated:
If that [individual with the authority to negotiate, amend, and modify
the terms of the mortgage] is the holder of the security deed, then the
deed holder must be identified in the notice; if that individual or entity
[with the authority] is the note holder, then the note holder must be
identified. If that individual or entity is someone other than the deed
holder or the note holder, such as an attorney or servicing agent, then
that person must be identified.
Id. at 433-34.
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Carr’s argument, that the January 2010 letter does not identify the secured
creditor, is meritless because § 44-14-162.2(a) does not require that a notice of the
initiation of proceedings to exercise a power of sale do so. See id. In fact, the case
most heavily relied upon by Carr to argue this point was vacated and remanded for
reconsideration by the Georgia Supreme Court following its You decision. See
Reese v. Provident Funding Assocs., 730 S.E.2d 551 (Ga. Ct. App. 2012), vacated
and remanded, No. S12C2028, order (May 20, 2013). You explains that § 44-14-
162.2(a) only requires notice letters to identify the entity with the authority to
modify the mortgage. See You, 743 S.E.2d at 433-34. The district court
determined that the January 2010 letter identified the entity with the authority to
modify the mortgage. Because Carr has not challenged this determination on
appeal, his argument is abandoned. See Irwin, 40 F.3d at 347 n.1.
Carr’s argument that the January 2010 letter was improper because it was
sent by a law firm is without merit. In Reese, the Georgia Court of Appeals
determined that § 44-14-162.2 does not require the secured creditor to send the
notice of the initiation of foreclosure proceedings. See Reese, 730 S.E.2d at 552-
53, vacated and remanded on other grounds, No. S12C2028, order (May 20,
2013). An entity with authority to act on behalf of the secured creditor may send
the relevant notice. Id. Further, the notice did not need to reflect that Moss Codilis
had the authority to send the notice on behalf of the secured creditor. See You, 743
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S.E.2d at 433-34 (providing that only the individual or entity with the authority to
modify the terms of the mortgage must be identified in the § 44-14-162.2 notice).
Carr has not shown that notice was improper under § 44-14-162.2, such that the
foreclosure sale was invalid. See O.C.G.A. § 44-14-162(a). Additionally, Carr has
not shown that U.S. Bank breached a legal duty owed to Carr with respect to
providing notice under § 44-14-162.2. See Gregorakos, 647 S.E.2d at 292.
Because Carr has not shown that U.S. Bank breached a legal duty owed to him, his
wrongful foreclosure claim is unavailing. See id. Consequently, it is unnecessary
to address Carr’s arguments concerning whether he can show causation as to that
claim.
AFFIRMED.
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